CITATION: R. v. MacLeod, 2016 ONSC 6941

COURT FILE NO.: CR-13-0805

DATE: 2016 11 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

S. Aujla, for the Crown

• and -

JOHN MACLEOD

S. Whitzman, for the Accused

Accused

HEARD: June 20, 21, 22, 2016

REASONS FOR JUDGMENT

COROZA J.

OVERVIEW

1John MacLeod is charged with production of marihuana. On May 13, 2013, police officers responded to an emergency call about a male and female fighting at a basement unit in Brampton, Ontario. Upon their arrival, the officers discovered a male and female and proceeded to search the unit due to the nature of the call. During a sweep of the premises, the police discovered marihuana plants in the furnace room.

2Mr. MacLeod applies for a remedy under s. 24(2) of the Canadian Charter of Rights and Freedoms. He asserts that the police officers violated his right against unreasonable search and seizure, under s. 8 of the Charter.

3Mr. Macleod submits that the officers had no legal authority to conduct a sweep of the premises and that the police did not turn their minds to whether the sweep of the unit was reasonable. Instead, he argues, the police acted on a policy of automatically conducting a safety sweep because of the nature of the call. As such, Mr. MacLeod challenges the admissibility of the seized marihuana.

4For the reasons that follow, I dismiss the application. The marihuana is admissible in this trial.

THE EVIDENCE¹

5At 12:17 p.m. on May 13, 2013, Constable Ball received a radio call for a premise check at 68 Simmons Blvd., in Brampton. There is a basement unit at that address. The call was broadcast by a dispatcher and Cst. Ball testified that the call could also be read on the computer screen found in his police cruiser.

6The information that Cst. Ball received was that a complainant was calling the Telus operator and had reported a disturbance. A male and female were fighting. The dispatcher requested that the officer "check on well-being". A Bell telephone trace had traced the call back to the address of the basement unit.

7Cst. Ball agreed that Exhibit B was an accurate printout of what he read on the computer terminal in his police cruiser on May 13, 2013. The relevant portion of this document reads:

"COMPLT IS CALLING TELUS OPERATOR 1037….REPORTING A DISTURBANCE FROM THIS NUMBER ML AND FML FIGHTING…PLSCHECK ON WELL BEING…ADDRESS OBTAINED THROUGH BELLTRACE"

8Cst. Ball testified that he did not know who the complainant was when he responded to the call. Nor did he know the sex of the complainant.

9Cst. Ball testified that this was an emergency call and that it had been classified as a "priority one" call by the dispatcher. The officer testified that this meant that he should respond to the call as quickly as possible. He arrived at the address at 12:24 p.m.

10Upon arrival, for his safety, Cst. Ball waited for another officer to arrive on the scene. He could not recall how long he waited, but it could have been up to five minutes. Once the other officers arrived, he approached the door to the basement unit.

11Cst. Ball testified that as he approached the unit door, he noticed a male teenager who appeared to be "special needs" standing in the doorway. According to Cst. Ball, the teenager's appearance led him to believe that the male had some form of mental disability. This male was later identified as Justin.

12Cst. Ball entered the unit and spoke to Justin's mother, Tanya. Cst. Ball explained the reason for his attendance. Tanya told him that Justin was her son, that he was "special needs" and that he had been playing with the phone.

13Cst. Ball told Tanya that, due to the nature of the call, he would be checking the residence to ensure that he could account for all the occupants in the home and that everyone was safe. There is no evidence that Tanya objected to the officers searching the premises.

14Cst. Ball searched the house. He testified that he did not open any drawers and only searched places where he believed a person could be hiding. At one point the officer opened a door that led to some stairs. The stairs led to a furnace room. He noticed a blanket in the furnace room and something that was lit behind the blue blanket. He believed it was reasonable for a person to be hiding there. As soon as he lifted the blue blanket he saw marihuana plants.

15Upon discovering the plants, he returned to the kitchen and arrested Tanya at 12:33 p.m. Further investigation eventually led to the arrest of Mr. MacLeod.

16Exhibit A is a book of photographs that I have reviewed. The authenticity of these photographs is not disputed. I have carefully reviewed photographs 3, 4, 5, 6, and 9 of the book. These photographs provide an accurate depiction of the blanket and where it was situated in the furnace room.

17During cross-examination, Cst. Ball agreed that he did not receive any information from the dispatcher indicating that there was a third or fourth person involved in the alleged fight. He also explained that he was not sure if there were other people in the unit, other than Tanya and Justin, when he initially attended at the scene.

18Cst. Ball also agreed that he could not recall if Justin looked upset. However, he agreed with Mr. Whitzman that if Justin had been upset or in distress, he would have noted this down in his notebook.

19Cst. Ball agreed that it was obvious to him that Justin had a "mental disability".

20Cst. Ball testified that he was following the practice of responding to a 911 call that had been taught to him. He testified that he was taught that when police officers responded to such a call they were to check the residence to make sure everybody was accounted for and safe.

ISSUES NOT IN DISPUTE

21Both counsel were very focused in their submissions. There are a number of issues that are not in dispute.

22First, there is no dispute that Justin does have a development issue. According to Mr. MacLeod, Justin cannot read or write.

23Second, there is also no dispute that Justin had called the Telus operator and that he had done that before on three or four occasions. Exhibit C is the recording of the Telus Operator calling the Peel Regional Police dispatcher. That being said, I did not find this exhibit helpful. In my view, the disc does nothing to advance the inquiry as to whether Cst. Ball was acting lawfully when he conducted a sweep of the residence. The call from the Telus operator to the dispatcher, while part of the narrative, is irrelevant to a review of the actions of the officer. The relevant material is the dispatcher's broadcast. The officer was entitled to rely on the dispatcher and accept what she told him at face value.

24Third, there is no dispute that Cst. Ball was permitted to initially enter the unit to investigate the call. Mr. Whitzman, in very focused submissions, stated that his complaint was about the sweep that occurred after Tanya notified Cst. Ball that Justin had called the police.

25Finally, although he was not present during the sweep, there is no issue that Mr. MacLeod has "standing" to make a claim on the search and seek a remedy under the Charter.

ANALYSIS

26Mr. Aujla and Mr. Whitzman agree that the police may enter a private dwelling when, on reasonable grounds, they have concerns about the life and safety of an occupant or to prevent the commission of an offence that would cause immediate and serious injury.

27The controlling authority on this application is the Supreme Court of Canada's decision in R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311.

28In that case, the Supreme Court of Canada held that in the context of a disconnected 911 call, the police have the power to investigate the call and they are entitled to locate the person in need of assistance and to determine the status of their health and safety. At para. 22, Chief Justice Lamer emphasized that the "public interest in maintaining an effective emergency response system is obvious and significant" and that this justified some intrusion on a resident's privacy interest.

29Chief Justice Lamer went on to emphasize that "each case will be considered in its own context, keeping in mind all of the surrounding circumstances". A recent decision from British Columbia highlights that it is the nature of the call that can play a significant factor in determining whether the power has been validly exercised (see R. v. Ahmed-Kadir, 2015 BCCA 346 at para 62, per Frankel J.A.).

30Mr. Whitzman makes two submissions. First, he submits that Cst. Ball conducted a sweep of the home as a matter of policy and that it did not matter what Tanya told the police – the police were going to search the premises.

31Mr. Whitzman forcefully argues that Cst. Ball testified that he was taught to clear a home after a 911 call and if Tanya had refused to allow the police to search the home, she would have been arrested for obstructing police. These assertions, combined with the undisputed evidence that Tanya and Justin did not appear to be in distress, demonstrate that Cst. Ball did not turn his mind to whether the sweep of the home was necessary.

32Second, counsel submits that even if the sweep was justified, Cst. Ball had no basis to go into the furnace room because the door was latched. Mr. Whitzman relies on photograph 1 of Exhibit A and submits that there is a latch that can be seen on the door leading to the furnace room. Mr. MacLeod has testified that the latch always remains in the locked position.

33Mr. Whitzman's second submission can be disposed of quickly. It is my respectful view that if Cst. Ball had a lawful basis to conduct the sweep, then it was irrelevant whether the door to the furnace room was latched. Cst. Ball testified that he could not recall using the latch, but even if he did, it was reasonable because a person could be hiding behind the door (see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.)).

34I have carefully considered Mr. Whitzman's first argument. After reviewing the evidence of Cst. Ball, I must also disagree with counsel's submission that this search was conducted as a matter of policy. In my view, the decision by Cst. Ball to sweep the home was reasonable based on the circumstances that the officer was faced with when he responded to the emergency call.

35I say this for the following reasons.

36First, I do not accept that Cst. Ball automatically searched the house as a matter of policy. I acknowledge that the officer at one point during cross-examination asserted that with 911 calls it was the practice of the Peel Regional Police to check the residence to make sure that everyone was accounted for and safe. I also acknowledge that Cst. Ball testified that he would have charged Tanya with obstruction if she had interfered with his sweep of the home. However, I do not agree that the officer was asserting that there was a policy of conducting a search following every 911 call. Indeed, the officer rejected the suggestions made by Mr. Whitzman that the nature of the call and the instructions to "check on the well-being" meant an automatic search of the home (see Transcript of Proceedings, June 20, 2016 at p. 36 at l. 5-10). Furthermore, Cst. Ball's evidence must not be taken in isolation but must also be considered in the context of the rest of his evidence about the reasons for the sweep.

37On my review of his evidence, Cst. Ball responded quickly to this priority one call and wanted to fully investigate the matter. The call related to a male and female fighting. The officer testified that he did not know the name of the complainant or the sex of the complainant. When he arrived at the scene he was provided with information that was diametrically opposed to the call. Tanya told him that there was a special needs boy in the house and that he had made the call. Prior to entering the residence, Cst. Ball had no information about the number of occupants in the unit, any history of other calls being made at the house on prior dates, and he did not know if Tanya and Justin were the actual male and female referenced in the call.

38In short, when he spoke to Tanya, Cst. Ball had no information supporting that what Tanya was telling him was the true state of affairs. Indeed, the officer testified that "for whatever reasons people don't always tell the truth to me" and that at the end of the day "I will want to do my due diligence and make sure that everybody is safe, because that's my number one concern".

39Given the nature of the call, which related to a fight, he was not obligated to accept Tanya's assertion that the call was made by Justin who was playing with the phone. Cst. Ball put it this way:

"Again, I don't want to use hypothetical scenarios, but I don't know if the male and the female that I initially saw are the male and female involved. I don't know if there is anybody else that was involved in the argument that might be hiding and I want to make sure that everybody in that house is safe." (Transcript of Proceedings, June 20, 2016, p. 10)".

40Therefore, I conclude that Cst. Ball had a subjective belief that a sweep was necessary and that belief was objectively reasonable.

41Mr. Whitzman argues that since Justin appeared to Cst. Ball as being "special needs", this makes Cst. Ball's rejection of Tanya's explanation that Justin had called the police because he was playing with the phone unreasonable. I am not persuaded by this argument. It seems to me that the fact that Justin appeared to have a mental deficiency equally supports the Crown's argument that Cst. Ball could not investigate the matter further with Justin and that the officer was left with no choice but to ensure that everyone involved in the call was accounted for.

42Mr. Whitzman relies on the case of R. v. Jones from the British Columbia Court of Appeal, 2013 BCCA 345, [2013] B.C.J. No. 1589. In that case, Ms. Jones called 911 and asked for an ambulance to remove her daughter from her residence. The police attended and found Ms. Jones outside. She told the officers that her daughter was in the house and gave them a key to the residence. The officer entered and found the daughter inside and she left without incident. The daughter also told the police no one was home and told them that her mother would not want them looking around the house. The officer looked through the house and found a marihuana grow operation.

43The trial judge dismissed the Charter application, but, the Court of Appeal allowed the appeal, set aside the convictions and entered acquittals.

44Mr. Whitzman argues that in this case, like Jones, Cst. Ball lacked an objective basis to sweep the home. There was no indication that anyone was at risk here and that Cst. Ball was speculating that there may be someone in the residence who required the help of the police.

45In my view, this case is distinguishable from Jones. As Neilson J.A. pointed out, the 911 call in that case did not reveal any criminal activity and there was no precise safety threat or risk identified in the call. The same cannot be said of the call here. The call received by the police related to a disturbance caused by a fight and the police were requested to check on "well-being". While it is true that Cst. Ball in this case neither saw nor heard anything to indicate a need for immediate action – that is only one factor to take into account. I am satisfied that there was an objective basis for Cst. Ball to conduct a sweep.

46Second, I am satisfied that Cst. Ball remained focused on safety throughout his search. He was not challenged on his evidence that he did not search any drawers or tables and that he only searched areas where he believed it was reasonable for a person to be hiding.

CONCLUSION ON SECTION 8

47Ultimately, Cst. Ball had to make a quick assessment of the situation, with very little information and time for reflection. The nature of the call was designated "priority one". While this is a close call, I am satisfied that Cst. Ball did not perform a sweep on some pre-set policy or practice which directed entry in all situations. He considered all of the information available to him and on the basis of that information performed a sweep of the residence. That information included the nature of the call (which was not detailed and limited) and Tanya's response to Cst. Ball's explanation for the police attendance at the residence.

48In my view, Cst. Ball was entitled to ensure the safety of the occupants and the sweep that he conducted focused on that purpose. He did not search the unit for any reason other than ensuring the safety of the occupants of the home.

49I find no s. 8 violation.

SECTION 24(2)

50Even if I am wrong in my assessment of the s. 8 issue, I would not exclude this evidence on an application of the principles set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

51According to R. v. Grant, at para. 71, a trial judge is to assess and balance the effect of admitting the evidence on society's confidence in the administration of justice having regard to (i) the seriousness of the Charter breach, (ii) the impact of the breach on the appellant's Charter-protected interests, and (iii) society's interest in the adjudication of criminal charges on their merits.

52With respect to the first inquiry, Cst. Ball did not act deliberately or egregiously in his sweep of the home. There was no evidence of a blatant or callous disregard of Charter rights by any of the officers who dealt with Tanya. When Cst. Ball spoke to Tanya, he advised her he was going to sweep the house and explained why. I find that Cst. Ball acted with the best of intentions, in circumstances where he did not have precise information.

53Cst. Ball testified that he could not be sure that the male and female he found at the home were the subjects of the call and that he had to investigate further. This subjective belief and his evidence that in his experience people do lie to the police, in the context of these calls, led him to conclude that a sweep was required. If Cst. Ball's actions did involve an unjustifiable use of police powers, it is a matter of degree. In my view, he barely crossed the line of what the law permitted. This factor favours admission.

54The impact of the breach, if there was one, is serious. The accused has a very high reasonable expectation of privacy in the home. That being said, I recognize that the sweep of the home was relatively non-intrusive. I accept that Cst. Ball only searched in areas where he reasonably thought people could be. I also take into account that this was not a big unit and it did not appear to me to be a sweep that took up a lot of time. I also factor in that the accused was not present during the search. Ultimately, while the privacy one expects in their home is beyond dispute, this second inquiry favours admission.

55The third factor – society's interest in an adjudication on the merits –favours admission of the evidence. The marihuana discovered as a result of the plain view observations of Cst. Ball is both reliable and essential to the Crown's case. The production of marihuana in a residence is a serious crime and there is a significant interest in an adjudication of this issue on the merits.

BALANCING

56I am satisfied that the evidence should be admitted, even if there was a Charter breach. It seems to me that Cst. Ball did have some information suggesting that there was a risk to the occupants inside the house. He was dispatched to check on the well-being of the male and female who were the subjects of a fight. He was told that the call was not related to a fight by Tanya. In these circumstances, I think it was reasonable to investigate those concerns. The search was a sweep, but did not exceed that which was reasonably necessary to ensure that no other occupants needed help.

DISPOSITION

57The application to exclude the marihuana is dismissed.

Coroza J.

Footnotes

1. 1I heard from three police officers and Mr. Macleod on the voir dire. It is not necessary for me to review the evidence in detail. It is Cst. Ball's evidence that was the focus of both counsel.